The STJ and the same-sex marriage

from “de facto society” to the conjugal family

Abstract

The judicial struggle of homoaffective couples to have their affective unions recognized as conjugal families permeated the jurisprudence of the Superior Court of Justice (STJ). In an initial understanding, of 1998, STJ stated that the union between people of the same gender should be framed as a “de facto society”, presenting proofs of the contribution to the formation of the common heritage to enable its division. In 2008, we had the first court that recognized the appropriateness of the analogy for recognizing the homoaffective union as a legally and constitutionally protected stable union. Other precedents reinforced this understanding, until the right of same-sex couples to access the legal systems of stable union and civil marriage was consolidated in the Court, in addition to the joint adoption of children and adolescents. The method used for the present article was that of reviewing jurisprudence, concluding that the STJ overcame a heterosexist view of the family, which only sees dignity (or sees greater dignity) of hetero-affective union, for an effectively democratic and pluralist, coherent view with the constitutional principle of the plurality of family entities, living up to the name of the Citizenship Court.